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Kovner, Corp. Counsel to the City of New York, New York City, Ellen B.
Fishman, Linda H. Young, Robert Abrams, Atty. Gen. of the State of NY,
New York City, O. Peter Sherwood, Sol. Gen., Judith Kramer, Charles F.
Sanders, for plaintiffs-appellants.
Otto G. Obermaier, U.S. Atty., S.D.N.Y., Diogenes P. Kekatos, Marla
Alhadeff, Asst. U.S. Attys., of counsel, for defendants-appellees.
Lucas Guttentag, Linda Bosniak, American Civil Liberties Union, New
York City, Michael Rubin, Altshuler, Berzon, Nussbaum, Berzon &
Rubin, Pauline Gee, Stephen A. Rosenbaum, California Rural Legal
Assistance, San Francisco, CA, Vibiana Andrade, Mexican American
Legal Defense & Education Fund, Los Angeles, CA, for amici curiae
American Civil Liberties Union, American Council of Nationality
Services, Anna R., Sofia Baez Dehuerta, Jane S., Catholic Charities,
Archdiocese of New York, Office for Immigrant Services, Travelers Aid
Service/Victim Services Agency, Asian American Legal Defense and
Educ. Fund, League of United Latin American Citizens, Nat. Coalition for
Haitian Refugees, New York Immigration Coalition, Cent. American
Refugee Center, Church Avenue Merchants Block Ass'n, Washington
Ass'n of Churches.
Before: CARDAMONE, WALKER, and McLAUGHLIN, Circuit Judges.
PER CURIAM:
We initially decided this appeal in Perales v. Thornburgh, 967 F.2d 798 (2d
Cir.1992). The Supreme Court granted certiorari and vacated the case and
remanded it to us for further consideration in light of Reno v. Catholic Social
Services, Inc., 509 U.S. ----, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). Reno v.
Perales, --- U.S. ----, 113 S.Ct. 3027, 125 L.Ed.2d 716 (1993).
In Catholic Social Services, the Court held that aliens challenging regulations
promulgated pursuant to the Immigration Reform and Control Act of 1986,
Pub.L. No. 99-603, 100 Stat. 3359 (the "Act"), but who had not applied for
adjustment of status under the Act, did not make out ripe claims merely because
the challenged regulations were promulgated or because they believed the
regulations made them ineligible for adjustment of status. The Court noted that
this was true whether the alien had heard of the challenged regulations from an
attorney, word-of-mouth, or from a "QDE," a private organization such as a
community center or church that is designated by the Attorney General
pursuant to the Act to disseminate information about the Act and assist in the
preparation of applications. Catholic Social Services, 509 U.S. at ---- - ---- n. 19,
113 S.Ct. at 2491 n. 19. However, the Court held that aliens whose applications
were "front-desked," that is, turned away by Immigration and Naturalization
Service employees and never processed because the applicant would be
ineligible under the challenged regulations, would have ripe claims. Id., 509
U.S. at ---- - ----, 113 S.Ct. at 2497. The Court also noted: "Although we think it
unlikely, we cannot rule out the possibility that further facts would allow class
members who were not front-desked to demonstrate that the front-desking
policy was nevertheless a substantial cause of their failure not to apply, so that
they can be said to have had the [challenged regulations] applied to them in a
sufficiently concrete manner to satisfy ripeness concerns." Id., 509 U.S. at ---n. 28, 113 S.Ct. at 2500 n. 28.
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In this case, the plaintiffs also challenge regulations promulgated under the Act.
As in Catholic Social Services, there are not facts in the record sufficient for us
to determine which, if any, of the members of the plaintiff class were frontdesked or otherwise had the challenged regulations applied to them "in a
sufficiently concrete manner to satisfy ripeness concerns." We therefore remand
this case to the district court for further proceedings consistent with Catholic
Social Services and this opinion.